As of this afternoon, Pokemon Go has officially arrived in Canada. The number of downloads for the augmented reality game were so high that they crashed the app’s servers.
If you haven’t been paying attention, the introduction of this real-time in-public game has created concerns around trespass, robbery, and even murder.
Pokemon hunting has resulted in police being alerted on suspicious behaviour, only to find people walking in circles staring at their phones. These hapless players have also been targeted by criminals based on their blind meandering. At least one attempted murder suspect has been apprehended due to the Pokemon hunt, and a dead body (no foul play suspected) was discovered.
Some have capitalized on the phenomenon, using “lures” to attract players. Uber drivers are specializing in Pokemon locations. Travel agencies are offering Pokemon tours, and independent entrepreneurs are selling Google maps with important landmarks. There are even suggestions that t it’s a great way for us to re-acquaint ourselves with our urban surroundings.
It’s unclear whether any of this interference by real property owners could give rise to claims of detinue, or the right of replevin to recover a Pikachu or Mewtwo (don’t worry, I don’t know what those are either).
Questions of attractive nuisance and occupier’s liability are likely to arise. Otherwise secure premises unwittingly hosting a “gym” or “poke stop” might be well informed to also download the app to take reasonable precautions to secure dangers and take additional measures to keep visitors out.
Although Toronto residents scoffed at recent attempts to ban walking while texting, the Pokemon Go phenomenon may give greater weight to the debate if there are actual injuries.
Employees are being cautioned not to go hunting during work hours. More people are interested in Pokemon Go than they are in going on dates, as its popularity is exceeding apps like Tinder. It’s already affecting personal relationships, which some family lawyers may rejoice in.
The greatest legal risks though may come from the game itself. In order to sign up users grant full access to their Google account, which creates enormous cyber security issues.
The real problem might be in the Terms of Service. The company behind Pokemon Go, Niantic, takes measures to ensure that Pokemons don’t appear in roadways, airport runways, or in bodies of water, and they provide users a form to report any inappropriate locations.
If there is an inevitable lawsuit, Niantic is likely to rely on the TOS to rebuff any claims. When sighing up, the user relieves Niantic of any liability and agrees to follow any domestic laws. The strongest component of these terms is the arbitration clause:
ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NIANTIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
In order to opt out, users must send an email to email@example.com within 30 days of their agreement to the terms, with “Arbitration Opt-out Notice” in the subject line. Failure to do so “…will be deemed to have knowingly and intentionally waived your right to litigate…”
Even if you never have a personal legal dispute against Niantic personally, the best revenge if you are getting annoyed by the swarm of Pokemon Go players is a swarm of Opt-Out notices.
You’re lucky, you still have time. Today is just day one.